Constitutional Topic: Martial Law

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Martial Law. Martial law is not explicitly
mentioned in the Constitution, but the suspension of habeas corpus is mentioned
in Article 1, Section 9, and the activation of
the militia in time of rebellion or invasion is mentioned in Article 1, Section 8. The Topic Page for Military Justice may also be of interest.

The sources for this topic are, primarily, The Living U.S.
Constitution by Saul Padover and Jacob Landynski (Meridian, 1995);
Constitutional Law: Cases and Commentary by Daniel Hall (Lawyer's
Cooperative Publishing, 1997); and ex parte Milligan, 71 US 2.

Note: please note the spelling of "martial law." A common mistake is to
spell it as "marshal law" or "marshall law." A "marshal" is a law enforcement
officer of, for example, the U.S. Marshal Service. There is such a thing as a
marshal, but no such thing as marshal law.

In strict dictionary terms, martial law is the
suspension of civil authority and the imposition of military authority. When
we say a region or country is "under martial law," we mean to say that the
military is in control of the area, that it acts as the police, as the courts,
as the legislature. The degree of control might vary - a nation may have a
civilian legislature but have the courts administered by the military. Or the
legislature and courts may operate under civilian control with a military
ruler. In each case, martial law is in effect, even if it is not called
"martial law."

Martial law should not be confused with military justice. In the United States, for
example, each branch of the military has its own judicial structures in place.
Members of the service are under the control of military law, and in some cases
civilians working for or with the military may be subject to military law. But
this is the normal course of business in the military. Martial law is the
exception to the rule. In the United States, the military courts were created
by the Congress, and cases can be appealed out of the military system to the
Supreme Court in many cases. In addition, a civilian court can petition the
military for habeas corpus.

Article 1, Section 9 states, "The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it." Habeas
corpus is a concept of law, in which a person may not be held by the
government without a valid reason for being held. A writ of habeas corpus can
be issued by a court upon a government agency (such as a police force or the
military). Such a writ compels the agency to produce the individual to the
court, and to convince the court that the person is being reasonably held. The
suspension of habeas corpus allows an agency to hold a person without a charge.
Suspension of habeas corpus is often equated with martial law.

Because of this connection of the two concepts, it is often argued that only
Congress can declare martial law, because Congress alone is granted the power
to suspend the writ. The President, however, is commander-in-chief of the
military, and it has been argued that the President can take it upon himself to
declare martial law. In these times, Congress may decide not to act,
effectively accepting martial law by failing to stop it; Congress may agree to
the declaration, putting the official stamp of approval on the declaration; or
it can reject the President's imposition of martial law, which could set up a
power struggle between the Congress and the Executive that only the Judiciary
would be able to resolve.

In the United States, there is precedent for martial law. Several times in
the course of our history, martial law of varying degrees has been declared.
The most obvious and often-cited example was when President Lincoln declared
martial law during the Civil War. This instance provides us with most of the
rules for martial law that we would use today, should the need arise.

On September 15, 1863, Lincoln imposed Congressionally-authorized martial
law. The authorizing act allowed the President to suspend habeas corpus
throughout the entire United States. Lincoln imposed the suspension on
"prisoners of war, spies, or aiders and abettors of the enemy," as well as on
other classes of people, such as draft dodgers. The President's proclamation
was challenged in ex parte Milligan (71 US 2 [1866]). The Supreme
Court ruled that Lincoln's imposition of martial law (by way of suspension of
habeas corpus) was unconstitutional.

In arguments before the Court, the counsel for the United States spoke to
the question of "what is martial law?" "Martial law," it was argued, "is the
will of the commanding officer of an armed force, or of a geographical military
department, expressed in time of war within the limits of his military
jurisdiction, as necessity demands and prudence dictates, restrained or
enlarged by the orders of his military chief, or supreme executive ruler." In
other words, martial law is imposed by a local commander on the region he
controls, on an as-needed basis. Further, it was argued, "The officer executing
martial law is at the same time supreme legislator, supreme judge, and supreme
executive. As necessity makes his will the law, he only can define and declare
it; and whether or not it is infringed, and of the extent of the infraction, he
alone can judge; and his sole order punishes or acquits the alleged
offender."

In this case, Lambden Milligan, for whom the case is named, was arrested in
Indiana as a Confederate sympathizer. Indiana, like the rest of the United
States, was part of a military district set up to help conduct the war.
Milligan was tried by military commission and sentenced to die by hanging.
After his conviction, Milligan petitioned the Circuit Court for habeas corpus,
arguing that his arrest, trial, and conviction were all unconstitutional. What
the Supreme Court had to decide, it said, was "Had [the military commission]
the legal power and authority to try and punish [Milligan]?"

Resoundingly, the Court said no. The Court stated what is almost painfully
obvious: "Martial law ... destroys every guarantee of the Constitution." The
Court reminded the reader that such actions were taken by the King of Great
Britain, which caused, in part, the Revolution. "Civil liberty and this kind
of martial law cannot endure together; the antagonism is irreconcilable; and,
in the conflict, one or the other must perish."

Did this mean that martial law could never be implemented? No, the Court
said. The President can declare martial law when circumstances warrant it:
When the civil authority cannot operate, then martial law is not only
constitutional, but would be necessary: "If, in foreign invasion or civil war,
the courts are actually closed, and it is impossible to administer criminal
justice according to law, then, on the theatre of active military operations,
where war really prevails, there is a necessity to furnish a substitute for the
civil authority, thus overthrown, to preserve the safety of the army and
society; and as no power is left but the military, it is allowed to govern by
martial rule until the laws can have their free course. As necessity creates
the rule, so it limits its duration; for, if this government is continued after
the courts are reinstated, it is a gross usurpation of power. Martial rule can
never exist where the courts are open, and in the proper and unobstructed
exercise of their jurisdiction. It is also confined to the locality of actual
war."

Through out United States history are several examples of the imposition
of martial law, aside from that during the Civil War.

During the war of 1812, General Andrew Jackson imposed martial law within
his encampment at New Orleans, which he had recently liberated. Martial law
was also imposed in a four mile radius around the camp. When word came of the
end of the war, Jackson maintained martial law, contending that he had not
gotten official word of the peace. A judge demanded habeas corpus for a man
arrested for sedition. Rather than comply with the writ, Jackson had the judge
arrested. After the civil authority was restored, the judge fined Jackson
$1000, which he paid, and for which the Congress later reimbursed Jackson.

In 1892, at Coeur d'Alene, Idaho, rebellious mine workers blew up a mill and
shot at strike-breaking workers. The explosion leveled a four-story building
and killed one person. Mine owners asked the governor to declare martial law,
which he did. At the same time, a request was made for federal troops to back
guardsmen. Over 600 people were arrested. The list was whittled down to two
dozen ring leaders who were tried in civil court. While in prison, the mine
workers formed a new union, the Western Federation of Miners.

In 1914, imposition of martial law climaxed the so-called Coal Field Wars in
Colorado. Dating back decades, the conflicts came to a head in Ludlow in 1913.
The Colorado National Guard was called in to quell the strikers. For a time,
the peace was kept, but it is reported that the make-up of the Guard stationed
at the mines began to shift from impartial normal troops to companies of loyal
mine guards. Clashes increased and the proclamation of martial law was made by
the governor. President Wilson sent in federal troops, eventually ending the
violence.

In 1934, California Governor Frank Merriam placed the docks of San Francisco
under martial law, citing "riots and tumult" resulting from a dock worker's
strike. The Governor threatened to place the entire city under martial law. The
National Guard was called in to open the docks, and a city-wide institution
of martial law was averted when goods began to flow. The guardsmen were
empowered to make arrests and to then try detainees or turn them over to the
civil courts.

Martial law and San Francisco were no strangers - following the earthquake
of 1906, the troops stationed in the Presidio were pressed into service. Guards
were posted throughout the city, and all dynamite was confiscated. The
dynamite was used to destroy buildings in the path of fires, to prevent the
fires from spreading. Troops were ordered to shoot looters. Though there was
never an official declaration of martial law, the event is often cited as such.
However, at all times it appears the troops took their orders indirectly from
the civil authority.

Though not a state at the time, Hawaii was placed under martial law in 1941,
following the Japanese attack on Pearl Harbor. Many of the residents of Hawaii
were, and are, of Asian descent, and the loyalty of these people was called
into question. After the war, the federal judge for the islands condemned the
conduct of martial law, saying, "Gov. Poindexter declared lawfully martial
law but the Army went beyond the governor and set up that which was lawful only
in conquered enemy territory namely, military government which is not bound by
the Constitution. And they ... threw the Constitution into the discard and set
up a military dictatorship."

On 8/26/2005, in the wake of Hurricane Katrina, New Orleans was placed under
martial law after widespread flooding rendered civil authority ineffective. The
state of Louisiana does not have an actual legal construct called "martial
law," but instead something quite like it: a state of public health emergency.
The state of emergency allowed the governor can suspend laws, order
evacuations, and limit the sales of items such as alcohol and firearms. The
governor's order limited the state of emergency, to end on 9/25/2005, "unless
terminated sooner."

There have been many instances of the use of the military within the borders
of the United States, such as during the Whiskey Rebellion and in the South
during the civil rights crises, but these acts are not tantamount to a
declaration of martial law. The distinction must be made as clear as that
between martial law and military justice: deployment of troops does not
necessarily mean that the civil courts cannot function, and that is one of the
keys, as the Supreme Court noted, to martial law.